WASHINGTON (AP) — A wary Supreme Court on has weighed whether public schools can discipline students for things they say off campus, worrying about overly restricting speech on the one hand and leaving educators powerless to deal with bullying on the other.
The justices, hearing arguments in the case of a 14-year-old high school freshman’s Snapchat F-bombs, struggled to fit the need to protect students’ political and religious expression with the ability of schools to get at disruptive, even potentially dangerous, speech that occurs outside the school setting.
In one of many examples members of the court offered, Justice Elena Kagan described boys who keep a sexually charged online ranking of girls based on their looks. “You can’t put people in jail for commenting on people’s appearance, but shouldn’t a school be able to deal with it?” Kagan asked.
The court tested out possible outcomes in the case of the student’s profanity-laced social media rant , which Justice Brett Kavanaugh described as her blowing off steam just like “millions of kids” do.
Kavanaugh is one of several justices who have children in high school, or recently did. The court heard just under two hours of arguments by telephone because of the coronavirus pandemic, well beyond the allotted 60 minutes.
The current dispute stems from Tinker v. Des Moines, the Vietnam-era case of a high school in Des Moines, Iowa, that suspended students who wore armbands to protest the war. In a landmark ruling, the Supreme Court sided with the students, declaring students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The court also held then that schools retained the authority to restrict speech that would disrupt the school environment.
At the center of this case is Brandi Levy of Mahanoy City, Pennsylvania.
Levy and a friend were at a convenience store when she used Snapchat to express her frustration at being kept on her high school’s junior varsity cheerleading squad for another year.
“F——— school f——— softball f——— cheer f——— everything,” Levy wrote, in a post that also contained a photo in which she and a classmate raised their middle fingers. A second post questioned how an incoming freshman could have made the varsity.
The posts were brought to the attention of the team’s coaches, who suspended Levy from the cheerleading team for a year. Levy’s parents responded with a federal lawsuit, claiming the suspension violated their daughter’s constitutional rights to free speech.
The case’s potential importance grew when the 3rd U.S. Circuit Court of Appeals in Philadelphia also sided with Levy and held that schools can’t impose discipline for what students say when they’re off campus.
American Civil Liberties Union lawyer David Cole, representing Levy, urged the justices to affirm the clean line the appeals court drew, making clear educators have no authority over children when they are not under a school’s supervision, .
“Expanding Tinker would transform a limited exception into a 24/7 rule,” Cole said.
But several justices said the campus border is not so clear in the age of the internet and the remote learning that has come with the pandemic.
“How does that fit with modern technology?” Chief Justice John Roberts asked.
The school district and the Biden administration both argued that the justices should reject the appellate ruling because it draws an artificial line.
Suspending Levy from cheerleading was a reasonable response because she targeted her coaches and a teammate’s ability to compete, said Lisa Blatt, representing the district.
Levy is “not somebody you’d want at the bottom of the pyramid,” Blatt said, referring to a cheerleading formation.
But if the court didn’t appear ready to embrace Levy’s argument, some justices also were concerned that a ruling for the district could give schools too much power to shut down speech they just don’t like.
“Kids basically talk to their classmates. Most of their conversation is about school. Most of their exchanges have to do with their perceptions of the authoritarian nature of their teachers and others. And why isn’t this any different than just that the coach of this team took personal offense?” Justice Sonia Sotomayor asked, noting that her law clerks told her that among teenagers “how much you curse is a badge of honor.”
Kavanaugh also said the coach maybe went too far by suspending Levy.
“But, as a judge and maybe as a coach and a parent, too, it seems like maybe a bit of overreaction by the coach,” Kavanaugh said.
By the end of the arguments, there was perhaps a sense among the justices that Levy’s case — a teenager venting her unhappiness about an extracurricular program — may not be the best one to use to write a sweeping rule about student speech in the digital age.
A decision is expected by late June.
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WASHINGTON (AP) — Fourteen-year-old Brandi Levy was having that kind of day where she just wanted to scream. So she did, in a profanity-laced posting on Snapchat that has, improbably, ended up before the Supreme Court in the most significant case on student speech in more than 50 years.
At issue is whether public schools can discipline students over something they say off-campus. The topic is especially meaningful in a time of remote learning because of the coronavirus pandemic and a rising awareness of the pernicious effects of online bullying.
Arguments are on Wednesday, via telephone because of the pandemic, before a court on which several justices have school-age children or recently did.
The case has its roots in the Vietnam-era case of a high school in Des Moines, Iowa, that suspended students who wore armbands to protest the war. In a landmark ruling, the Supreme Court sided with the students, declaring students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Ever since, courts have wrestled with the contours of the decision in Tinker v. Des Moines in 1969.
Levy’s case has none of the lofty motives of Tinker and more than its share of teenage angst.
Levy and a friend were at a convenience store in her hometown of Mahanoy City, Pennsylvania, when she took to social media to express her frustration at being kept on her high school’s junior varsity cheerleading squad for another year.
“F——— school f——— softball f——— cheer f——— everything,” Levy wrote, in a post that also contained a photo in which she and a classmate raised their middle fingers.
The post was brought to the attention of the team’s coaches, who suspended Levy from the cheerleading team for a year.
Levy, now 18, is finishing her freshman year in college. “I was a 14-year-old kid. I was upset, I was angry. Everyone, every 14-year-old kid speaks like that at one point,” she said in an interview with The Associated Press.
Her parents knew nothing about the Snapchat post until she was suspended, she said. “My parents were more concerned on how I was feeling,” Levy said, adding she wasn’t grounded or otherwise punished for what she did.
Instead, her parents filed a federal lawsuit, claiming the suspension violated their daughter’s constitutional speech rights.
Lower courts agreed and restored her to the cheerleading team. The 3rd U.S. Circuit Court of Appeals in Philadelphia held that “Tinker does not apply to off-campus speech.” The court said it was leaving for another day “the First Amendment implications of off-campus student speech that threatens violence or harasses others.”
But the school district, education groups, the Biden administration and anti-bullying organizations said in court filings that the appeals court went too far.
“The First Amendment does not categorically prohibit public schools from disciplining students for speech that occurs off campus,” acting Solicitor General Elizabeth Prelogar wrote on behalf of the administration.
Philip Lee, a University of District of Columbia law professor who has written about regulation of cyberbullying, said it makes no sense to draw the line on policing students’ speech at the edge of campus.
“Most cyberbullying content is created off campus on computers, iPads, all kinds of electronic devices,” said Lee, who joined a legal brief with other education scholars that calls for a nuanced approach to regulating student speech in the Internet age.
“But at same time, you don’t want situation where schools are monitoring everyone’s speech at home,” he said.
The Mahanoy Area School District declined to comment on the case, its lawyer, Lisa Blatt, said.
But in her brief for the district, Blatt wrote, “This case is about how schools address the bad days.”
Schools should not be forced “to ignore speech that disrupts the school environment or invades other students’ rights just because students launched that speech from five feet outside the schoolhouse gate,” Blatt wrote.
The school’s approach would allow educators to police what students say round the clock, said Witold “Vic” Walczak of the American Civil Liberties Union, which is representing Levy.
“And that is super dangerous. Not only would students like Brandi not be able to express non-threatening, non-harassing bursts of frustration, but it would give schools the possibility of regulating important political and religious speech,” Walczak said.
An unusual alliance of conservative and liberal interest groups has formed behind Levy, all pointing to the dangers of expanding school regulation of students speech.
The Alliance Defending Freedom and Christian Legal Society urged the court to affirm the appellate ruling because of “the perils of schools regulating off-campus speech. Religious speech, in particular, provokes debate and inflames passions.”
Mary Beth and John Tinker, the siblings at the center of the 1969 case, also are on Levy’s side. Their protest, updated for the digital age, would have included a social media component, perhaps a black armband digitally imposed on their school’s logo, they wrote in a high-court brief.
The outcome proposed by the school district would have left them subject to discipline, the Tinkers wrote.
Walczak, the ACLU lawyer, acknowledged that the “speech here is not the most important in the world. This isn’t political or religious speech.”
But Levy’s outburst has made her a potential successor to the Tinkers and their antiwar protest from the 1960s.
“I’m just trying to prove a point that young students and adults like me shouldn’t be punished for them expressing their own feelings and letting others know how they feel,” Levy said.